Mr.MichaelFitzgerald and
Mr.FrankVitacco, Business Representatives, 600
West
Washington Boulevard, Chicago, Illinois 60606, on behalf of IBEW, Local Union
134.

ORDER DISMISSING AMENDED ELECTION
PETITION

On September 9, 1991, International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, Region 10/Teamsters Local Union No. 74/ and
United Food and Commercial Workers Union Local 1444 filed an amended election petition
with
the Wisconsin Employment Relations Commission seeking joint certification as "UAW
Region
10/Teamsters Local 744/UFCW Local 1444 'Unity Team'" in three potential bargaining units
of
Dairyland Greyhound Park, Inc. employes.

Dairyland, International Brotherhood of Electrical Workers, Local 134 and Hotel
Employees and Restaurant Employees Local 122 oppose the petition.

Hearing was held on October 2 and 3, 1991, in Kenosha, Wisconsin, before
Examiner
Peter G. Davis. Written argument was filed, the last of which was received on April 7,
1992.

Having considered the matter, the Commission is persuaded the amended
election petition
is untimely.

NOW, THEREFORE, it is

ORDERED

1. The amended election petition is dismissed.

2. Within thirty days of the date of this Order, hearing shall commence as to all
issues
which must be resolved prior to issuance of a Certification of the August 2, 1991 election
results
and any Direction of additional elections.

Given under our hands and seal at the City of Madison,
Wisconsin
this 11th day of May, 1992.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By A. Henry Hempe /s/
A. Henry Hempe, Chairperson

Herman Torosian /s/

Herman Torosian, Commissioner

William K. Strycker /s/

William K. Strycker, Commissioner

DAIRYLAND GREYHOUND PARK, INC.

MEMORANDUM ACCOMPANYING

ORDER DISMISSING AMENDED ELECTION
PETITION

Background

On March 29, 1991, the Wisconsin Employment Relations Commission issued
Findings
of Fact, Conclusions of Law and Direction of Elections which determined that there were at
least
three potential appropriate collective bargaining units of Dairyland employes: (1)
Food/Beverage
Department; (2) Mutuels Department; and (3) all other employes. The Commission therein
directed that any labor organization who wished to represent the employes in any of the
potential
bargaining units should so advise the Commission within ten days of the date of the
Direction.
The Commission also gave all parties the opportunity to request the establishment of
additional
departmental units.

The Commission issued Amended Findings of Fact, Conclusions of Law and
Direction of
Elections on May 3, 1991, which granted a UAW request that a Maintenance Department
unit also
be determined as appropriate and further ordered that any labor organization wishing to
represent
employes in the Maintenance Department unit should so advise the Commission within ten
days
of the date of the Amended Direction.

On May 24, 1991, the Commission conducted an election to determine whether the
employes in the three departmental units which were found to be potentially appropriate
wished
to be included in separate departmental bargaining units or whether said employes wished to
be
combined with other employes for the purposes of collective bargaining. On July 19, 1991,
the
Commission certified to the parties that a majority of the Food/Beverage Department
employes
did not vote to establish themselves as a separate bargaining unit; that a majority of the
Mutuels
Department employes did vote to establish themselves as a separate department; and that a
majority of the Maintenance Department did vote to establish themselves as a separate
bargaining
unit. Therefore, the Commission directed that elections be held in a Mutuels Department
unit,
a Maintenance Department unit and a unit of all other Dairyland employes for the purpose of
determining whether the employes in these potential bargaining units wished to be
represented by
any of the labor organizations seeking to represent them for the purposes of collective
bargaining
or whether they desired no such representation.

The representation election was conducted on August 2, 1991. The tally of the votes
on
August 2, 1991, reflected the following results:

Mutuels Unit

1. CLAIMED ELIGIBLE TO VOTE
275

2. BALLOTS CAST
215

(Includes all ballots)

3. BALLOTS CHALLENGED
9

4. BALLOTS VOID
0

5. BALLOTS BLANK
0

6. VALID BALLOTS COUNTED
206

(Total ballots cast minus challenged ballots

void ballots, and blank ballots)

7. BALLOTS CAST FOR IBEW LOCAL 134
72

8. BALLOTS CAST FOR TEAMSTERS LOCAL 744
4

9. BALLOTS CAST FOR UFCW LOCAL NO. 1444
35

10. BALLOTS CAST FOR NO REPRESENTATION
95

Maintenance Unit

1. CLAIMED ELIGIBLE TO VOTE
67

2. BALLOTS CAST
57

(Includes all ballots)

3. BALLOTS CHALLENGED
21

4. BALLOTS VOID
0

5. BALLOTS BLANK
0

6. VALID BALLOTS COUNTED
36

(Total ballots cast minus challenged ballots

void ballots, and blank ballots)

7. BALLOTS CAST FOR H.E.R.E. LOCAL 122
0

8. BALLOTS CAST FOR INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL NO. 139
0

9. BALLOTS CAST FOR TEAMSTERS LOCAL 744
11

10. BALLOTS CAST FOR UAW REGION 10
15

11. BALLOTS CAST FOR UFCW LOCAL 1114
7

12. BALLOTS CAST FOR NO REPRESENTATION
3

Residual Unit

1. CLAIMED ELIGIBLE TO VOTE
436

2. BALLOTS CAST
310

(Includes all ballots)

3. BALLOTS CHALLENGED
43

4. BALLOTS VOID
2

5. BALLOTS BLANK
1

6. VALID BALLOTS COUNTED
266

(Total ballots cast minus challenged ballots

void ballots, and blank ballots)

7. BALLOTS CAST FOR H.E.R.E. LOCAL 122
0

8. BALLOTS CAST FOR TEAMSTERS LOCAL 744
55

9. BALLOTS CAST FOR UAW REGION 10
38

10. BALLOTS CAST FOR UFCW LOCAL 1444
68

11. BALLOTS CAST FOR NO REPRESENTATION
105

On August 8, 1991, representatives of the Commission met with the parties to discuss
resolution of the various challenges to ballots which were filed during the August 2 election.
Sufficient challenges were resolved in the Residual Unit to allow for a revised tally sheet
which
reflected the following:

1. CLAIMED ELIGIBLE TO VOTE
436

2. BALLOTS CAST
312

(Includes all ballots)

3. BALLOTS CHALLENGED
18

4. BALLOTS VOID
2

5. BALLOTS BLANK
1

6. VALID BALLOTS COUNTED
291

(Total ballots cast minus challenged ballots

void ballots, and blank ballots)

7. BALLOTS CAST FOR H.E.R.E. LOCAL 122
0

8. BALLOTS CAST FOR TEAMSTERS LOCAL 744
59

9. BALLOTS CAST FOR UAW REGION 10
45

10. BALLOTS CAST FOR UFCW LOCAL 1444
71

11. BALLOTS CAST FOR NO REPRESENTATION
116

Subsequent to the August 8, 1991 meeting, UFCW Local 1444, Dairyland, and
H.E.R.E.
Local 122 all filed objections to the conduct of the August 2, 1991 election. H.E.R.E.
subsequently withdrew its objections.

On September 9, 1991, the Unity Team petition was filed with the Commission
seeking
placement of UAW/Teamsters/UFCW on the ballot as a single choice in all three potential
bargaining units in the next round of elections.

Positions of the Parties

UAW/Teamsters/UFCW

The Unity Team argues that it should be allowed to appear as a single choice on the
next
election ballot to offer Dairyland employes the opportunity to cast a meaningful ballot in the
reasonably near future on the fundamental underlying question of whether they desire to be
represented for the purposes of collective bargaining by a labor organization. Unity Team
argues
that the preliminary results of the first round of representation elections indicate that while a
majority of the valid ballots cast in each bargaining unit favored representation by a labor
organization, no single labor organization was able to garner a majority of the valid ballots
cast
in any bargaining unit. Unless the Unity Team is allowed to appear on the next ballot, the
Unity
Team argues that many more elections with the resultant delay will be required before a
definitive
result is reached. If the Unity Team request is granted, Unity Team asserts that the next
round
of elections will almost certainly provide a determinative answer in the three potential
bargaining
units.

Unity Team further asserts that, in light of the preliminary results of the first round
of
representation elections, UAW/Teamsters/UFCW should be afforded the opportunity to
reassess
whether the interests of Dairyland employes and their own individual interests as labor
organizations are now better served by seeking individual or joint certification as the
exclusive
collective bargaining representative.

Unity Team asserts that the Commission has the power and authority to grant the
Unity
Team request. In this regard, Unity Team argues that the Commission has powers
"incidental and
reasonably necessary to the proper and efficient administration" of the Wisconsin
Employment
Peace Act, citing Layton School v. WERC, 82 Wis.2d 324, at 350 (1978). Unity Team
further
contends that Sec. 111.05(4), Stats., allows the Commission to conduct another election
within
a bargaining unit "provided that it appears to the Commission that sufficient reason therefor
exists." Unity Team argues that such sufficient reason exists herein for the granting of the
Unity
Team request.

Dairyland

Dairyland asserts that the Unity Team petition should be dismissed as untimely.
Dairyland
contends that if the Unity Team is a labor organization, it is a new labor organization and a
new
petitioner for the purposes of Dairyland elections. Dairyland alleges that Sec. 111.05(3)(m),
Stats., does not contemplate or permit the addition of a new ballot choice at the run-off
election
stages of the process. In this regard, Dairyland asserts that while the Commission can drop
an
existing choice from the ballot during a run-off election, the Commission cannot add a new
choice. Dairyland argues that it is axiomatic that a choice which did not appear on the first
ballot
could not have received votes sufficient to appear on a run-off ballot.

Dairyland further asserts that the petition is untimely in the context of the
deadlines
established in Commission decisions within which labor organizations were to have made
their
intentions known as to interest in appearing on representation ballots. Obviously, the Unity
Team
did not express such an intention within the timeframe established by Commission decisions.

Dairyland further alleges that the Commission should refuse to permit the Unity
Team
to
appear on the ballot because granting the request would interfere with the orderly process of
election proceedings. In this regard, Dairyland asserts that under Wisconsin law, a new or
amended election petition must be considered untimely not later than some point prior to the
first
election in an election process.

Dairyland further contends that the Unity Team is not a proper joint representative.
In this
regard, Dairyland asserts that allowing the Unity Team to participate in any election would
be
contrary to the policies the Peace Act was intended to promote; that the unions which
comprise
the Unity Team are not entitled to any presumptions of interest as to joint representation; that
a
prima facia showing of an intention to jointly represent employes is rebuttable; and that the
record
evidence shows that the unions in question do not intend to represent Dairyland employes on
a
joint basis.

Lastly, Dairyland argues that to grant the Unity Team motion would be to interfere
with
employe free choice and render the results of the past elections null and void. In this regard,
Dairyland contends that to add the Unity Team to any ballot would create irreconcilable
difficulties because choices employes had previously expressed interest in would be removed
from
the ballot, while a choice no employe had previously expressed interest in would be added to
a
ballot. Dairyland asserts that if the Unity Team had been on the ballot for the unit
determination
election or for the first representation election, the results of those elections may well have
been
very different.

Given all of the foregoing, Dairyland asks that the Unity Team petition be dismissed.

IBEW

IBEW asserts that the Unity Team petition should be dismissed as untimely. It
argues
that
the petition attempts to circumvent the previous procedures and election outcomes. In this
regard,
IBEW contends that through the new petition UAW would be provided untimely access to the
Mutuels unit ballot, and Teamsters would be protected from being dropped from the Mutuels
ballot based upon the results of the last election. Therefore, IBEW asks that the petition be
dismissed.

H.E.R.E.

H.E.R.E. asserts that the Unity Team petition is untimely, flies in the face of
employes'
rights to self determination, and is without any basis under Wisconsin law. H.E.R.E.
contends
that there is no statutory provision or administrative rule which even remotely suggests that
the
Commission has the authority to allow a new labor organization onto the ballot in a run-off
election. Moreover, H.E.R.E. argues that placing the Unity Team on a run-off ballot at this
stage
in the process would allow other labor organizations other than those on the original ballots
to also
seek placement on the ballot. Thus, H.E.R.E. argues the election process could continue
forever,
contrary to the intent of the Wisconsin Employment Peace Act. H.E.R.E. further contends
that
to allow the Unity Team to seek joint certification would be to disregard the wishes
expressed by
the employes within the bargaining units. Given all of the foregoing, H.E.R.E. asks that the
petition be dismissed.

Discussion

Section 111.05(3m), Stats., provides in pertinent part that in a run-off election:

". . . the commission may drop from the ballot the name of the representative that
received
the least number of votes at the original election, or the privilege of voting against any
representative when the least number of ballots cast at the first election was against
representation by any named representative."

Reviewing this statutory provision, we think it clear that the only change in the ballot
which we
are empowered to make in a run-off election is the deletion of choices from the ballot.
Thus, we
conclude that we do not have the statutory authority to alter the choice confronting the voters
in
any other manner. (1) Therefore, we do not
find it appropriate to allow the three labor
organizations in question to appear as a single choice on the ballot in any of the three
bargaining
units. Given the foregoing, we have dismissed the petition.

Dated at Madison, Wisconsin this 11th day of May, 1992.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By A. Henry Hempe /s/
A. Henry Hempe, Chairperson

Herman Torosian /s/
Herman Torosian, Commissioner

William K. Strycker /s/

William K. Strycker, Commissioner

1. Because the statute explicitly resolves the issue
before us, we reject the Unity Team
argument which asserts that under the Layton School holding, we have
"incidental"
discretion to grant the Unity Team request.

Further, contrary to the Unity Team argument, Sec. 111.05(4), Statsl,
applies
only to the question of whether another election should be conducted and not to the
question of changing ballot choices.